By Melissa Levine-Piro, Keri Bruso & Gabrielle Antolovic
Kevin Costner and Christine Baumgartner’s divorce is splashed across the news – for good reason. From Christine’s demand for $248,000.00 a month in child support to Kevin’s allegations about Christine’s spending habits and accusations about extramarital affairs, this case has been drama-filled. The most exciting part for the attorneys and staff at Hera Law Group is that Christine is challenging the couple’s pre-nuptial agreement, signed before their wedding in 2004.
The Parties pre-nup contains an in torrerem clause. According to records reported by other sources, the clause states, “If Christine, in any manner, challenges or assists in the challenge of the validity or enforceability of any provision of this Agreement, she shall lose any and all rights to receive any payment, Property or Interest from Kevin according to this agreement.” “In terrorem” clauses are standard in pre-nuptial agreements. They are also often familiar with wills to incentivize individuals from challenging the legality of either the pre-nup or a will simply because they want to. Despite differing opinions on terrorem clauses, courts often uphold them. In this case, if Christine fails to challenge her pre-nup successfully, she could stand to lose the $1.5 million payout that she is entitled to under the agreement. Quite a penalty!
With so much on the line for Christine, Hera Law Group has wondered how this prenup challenge would shake out in Massachusetts.
What is the standard for challenging a pre-nuptial agreement in Massachusetts?
In March 2023, the Massachusetts Appeals Court issued a decision addressing pre-nuptial challenges and the standard for successfully doing so.[i] The Rudnick decision held that pre-nuptial challenges must involve both a “first look” and a “second look.” In layperson’s terms, to uphold a pre-nuptial agreement, the court must find that (1) the agreement must have been fair and reasonable at the time of execution and (2) that it must be conscionable at the time of the enforcement.[ii] Citing the DeMatteo case, the court explained the “second look” as a conscionability standard. The court stated that the “second look” consists of measuring the contesting spouse’s ability to retain some marital assets, such as through alimony, retention of marital property, or both.[iii] If a pre-nup agreement strips a spouse of essentially all of their marital interests, this would be contrary to public policy and would become an unenforceable agreement.[iv]A court must glean the circumstances surrounding the creation of the pre-nuptial agreement and the Parties’ circumstances at the time of the enforcement or at the time of divorce to determine if the agreement can be upheld. A judge will consider factors such as voluntariness, independent legal counsel for both parties, full and fair financial disclosure, and fairness or reasonableness of the agreement’s terms to determine whether to uphold a pre-nuptial agreement. The party who challenges the agreement will be burdened to prove that such circumstances, either at the time of the agreement or enforcement, are unconscionable to enforce.
So, could Christine meet her burden if she were in Massachusetts? Let’s examine.
Christine’s “first look”
According to various reports, Christine alleges that she felt pressured to sign the pre-nup agreement and did not fully understand the terms when she signed the agreement. The public will likely only know some of the circumstances surrounding the agreement at its execution. However, according to other reports, Kevin’s legal team counters that Christine signed the pre-nup agreement “voluntarily” and “free form duress, fraud or undue influence.” However, it is unclear whether Christine had an attorney at the time of signing the agreement, which would be a major hurt for Kevin’s legal defense.
On top of that, it is unclear whether Kevin made a complete disclosure of his assets at the time the prenuptial agreement was entered into. Kevin reported that he owned $102,716,000.00 in his pre-nuptial agreement to Christine in 2004. However, this may not be enough disclosure for Massachusetts standards. In Massachusetts, each party to a prenuptial agreement must provide a “full and fair disclosure” of all of their financial information.[v] It is generally recommended that each party list out of all one’s assets, debts, properties, business interests, and source of income. If Kevin did not provide such an extensive list, then this may not be sufficient for the “full and fair disclosure” rule in Massachusetts, hence giving Christine a chance to prevail under this “first look” analysis.
Only the Parties themselves will know the truth, but one may surmise falling in love and subsequently marrying an A-list actor would create some financial and legal power imbalances. Yet, this fact alone would likely not be enough to allege that Christine signed the agreement under “duress.” Without more facts, such as whether Christine had a lawyer or how close to the wedding day the agreement was signed, Massachusetts law would likely favor Kevin in the so-called “first look” analysis.
Christine’s “second look”
Based on our analysis of various reports, Christine may have a slightly better chance of winning on a “second look” analysis. By way of background, the Parties were married for almost twenty years. Reports state that Kevin made almost $20 million in 2022 and has solely supported the couple’s lavish lifestyle, including expenses worth $6.6 million that year. On the other hand, reports detail that Christine is a handbag designer under the label Cat Bag Couture. Reports state that in her court documents, she alleges that she has no income. This is rather contradictory, and reports have not yet cleared up how one can be a handbag designed and make no income.
As mentioned, in 2004, when the Parties entered the pre-nuptial agreement, Kevin disclosed that he owned $102,716,000.00 in assets. According to various reports, Kevin’s net worth has increased during the term of the marriage and is now about $250 million. Kevin’s assets and earnings are significantly more than Christine’s and have grown about $148 million dollars since the time of the marriage. Enforcing their agreement as is, where Christine would only receive $1.5 million, may or may not be “unconscionable.” One would want to know how Christine contributed to the marriage. For example, if Christine was the primary caretaker of the Parties three children, managed the home, or so on, then this could lead to a strong argument that a mere $1.5 million dollar payout for a twenty-year marriage would be insignificant. While the facts in Kevin and Christine’s case are different than other previous cases where a “second look” has overruled prenuptials, such as the Kelcourse case, this level of assets and such a small payout upon divorce may be enough for the “second look” analysis.[vi]
But, if we do some analysis in line with the DeMatteo case, the outcome could differ. Similar to the facts of that case, Christine receiving $1.5 million could be “a one-time alimony payout” that allows her to retain some of the marital assets for herself (But, of course, would not be in line with alimony calculations based on the length of their marriage and Kevin’s earnings). But here, reports have said that Christine could not retain the marital property the couple shared per the terms of the pre-nuptial agreement and was forced to vacate at the end of July 2023.
Ultimately, we need more facts to provide more in-depth analysis and predict if Massachusetts law would uphold or strike Costner’s pre-nuptial agreement. In the coming months, more will emerge regarding this party’s divorce status and enforceability of the pre-nup.
If you want to learn more about pre-nups in Massachusetts or are considering or going through a divorce and have a pre-nuptial agreement, don’t hesitate to contact the attorneys and staff at Hera Law Group at (978) 637-2048.
[i] Rudnick v. Rudnick, 102 Mass. App. Ct. 467 (2023)
[ii] Id. at 471
[iii] DeMatteo v. DeMatteo, 436 Mass. 18, 35 (2002)
[iv] Id. at 36
[v] GL. C. 209 § 206
[vi] Kelcourse v. Kelcourse 87 Mass. App. Ct. 33, 34 (2015)